Judge: Orlando is "judge shopping" in chalk protester case

A federal judge has accused Orlando City Hall of "judge shopping" in a First Amendment case filed against the city by a man arrested for scrawling protest messages on the sidewalk in chalk.

In an unusually blunt order filed Friday, U.S. District Judge Gregory Presnell wrote that the city lawyers seemed to be trying to force him off the case and their actions appeared "highly improper." He has ordered the lawyers involved to appear in court Wednesday for an evidentiary hearing, meaning the attorneys themselves could be called to the witness stand and questioned under oath.

The struggle is all over Timothy Osmar, a homeless member of Occupy Orlando who has twice been arrested for writing protest messages in chalk on the plaza in front of City Hall. Before Osmar, Orlando police had apparently never before arrested anyone for chalk writing. He has sued on constitutional grounds, asking the court to permanently block the city from using its ordinance to curtail political speech.

Mayor Buddy Dyer's administration is taking the case seriously. The city has hired several lawyers to defend the ordinance, including a former Florida Supreme Court justice who normally charges $625 an hour.

The case was randomly assigned to Judge Presnell, but he thinks the city wants him off the case.

First, an assistant city attorney filed a motion asking Presnell to recuse himself, as he has in other cases that involve allegations of brutality by Orlando police. Presnell had stepped aside before because he believes an Orlando officer used excessive force against his son nine years ago.

But Presnell didn't step aside this time, pointing out that Osmar's case is about the First Amendment, not police brutality.

The city then hired attorney David King to handle the case but requested a delay because King is out of the country. One of King's partners, wrote in court papers that if Presnell refused to delay the case again, the city would hire a different firm: Akerman Senterfitt & Eidson.

That would force Presnell to recuse himself — he used to work at that firm, and his wife is a shareholder there. The judge noted that the two Akerman attorneys who would handle the case, Pat Christiansen and Virginia Townes, are not First Amendment lawyers.

"It appears that Akerman Senterfitt was retained not for its competence, but for the conflict it would create. … Out of all the possible firms the city could have chosen, it settled on the one firm whose presence would force me to recuse myself," Presnell wrote.

In court papers filed Tuesday, City Attorney Mayanne Downs insisted the city was not "judge shopping," and King is the city's first choice. And if King is not available, the defense would be led by a third Akerman lawyer: Joseph Hatchett, formerly a Florida Supreme Court justice and chief judge of the 11th Circuit U.S. District Court of Appeals.

"The decision to hire the Akerman lawyers to handle this matter fulfilled my fiduciary duty to our taxpayers to hire the best lawyers for this matter at the best price,'' Downs wrote.

City officials could not say how much the case will ultimately cost. Akerman's hourly rates range from $220 to $625, though that the firm has agreed to a 10 percent discount for the city. King is charging the city $425 an hour, discounted from his standard $525.